[Cite as Levy v. Huener,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

Royanne Levy Court of Appeals No. L-17-1081

Appellant Trial Court No. CI0201602063

v.

Jean Ann Huener, et al. DECISION AND JUDGMENT

Appellees Decided: January 12, 2018

*****

Zachary J. Murry, for appellant.

J. Mark Trimble, Tracy B. Selis, and Stephen E. House, for appellees.

*****

JENSEN, J.

{¶ 1} Appellant, Royanne Levy, appeals the March 20, 2017 judgment of the

Lucas County Court of Common Pleas granting summary judgment to appellees, Jean

Huener, Kay Huener, and Beth Huener. Because we find that the trial court properly

granted summary judgment on Levy’s common law negligence claim, but a genuine issue of material fact remains for trial on the issue of proximate cause, we affirm, in part, and

reverse, in part.

I. Background and Facts

{¶ 2} This case arose from a slip and fall accident on the Huener sisters’ property.

On October 31, 2016, Levy was walking over a creek bridge1 installed at the rear of the

Hueners’ home when she fell and sustained serious injuries.

{¶ 3} At the time of the accident, Levy was temporarily renting a room in the

Hueners’ home. Although the parties did not have a written lease agreement, Levy and

the Hueners orally agreed that Levy would pay $550 per month in rent, part of which was

for food costs. Levy paid rent for approximately two months (half of September, all of

October, and half of November) before moving to her own apartment.

{¶ 4} The Hueners’ home is a single-family dwelling with three entrances: a front

door, a side door, and a rear door. The parties mainly entered the house through the rear

door, which is accessible by a set of steps and a ramp that lead to the driveway. The

creek bridge is situated approximately halfway up the left side of the ramp; one end of the

creek bridge is attached to the side of the ramp and the other is on the ground. The

ground on either side of the creek bridge is landscaped, and there is a decorative concrete

stone between the base of the creek bridge and the paved driveway. The creek bridge

does not have any handrails, traction tape, or other safety features. Levy testified at her

1 Levy refers to the creek bridge as a “narrower ramp” that is part of a “ramp system” at the back of the Hueners’ home, while the Hueners refer to it as a “doggy bridge.” The item is manufactured and marketed as a “creek bridge,” which is the term that we will use. 2. deposition that she was aware of the creek bridge, but had never used it. She recalled that

no one ever told her she could or could not walk on the creek bridge. She said it was

possible, however, that someone had mentioned that it was a doggy bridge, although she

had never seen the dogs use it. She later testified that at least one of the sisters told her

that the purpose of the creek bridge was to clean the dogs’ paws.

{¶ 5} Immediately prior to Levy’s fall, Levy and at least one of the Huener sisters

were unloading items from the car. Someone was blocking the ramp, so Levy decided to

cross the creek bridge to get to the back door. Although Levy had never walked on the

creek bridge (or seen anyone else walk on the creek bridge), she testified at her

deposition that she decided to cross it that day. Levy’s hands were empty, but she had a

plastic grocery bag with some small items in it on one of her wrists. After taking two or

three steps, as she was reaching the apex of the creek bridge, Levy testified that she felt

her feet slipping from under her. She said that she “reached out to grab something, but

there’s no railing there” to grab. She also testified that she knew she was “in trouble

because there was nothing to hold onto” as she began falling. Levy fell backward and

landed flat, fracturing her left elbow and her pelvis.

{¶ 6} Levy testified in her deposition that she did not know what caused her to

fall. She did not see anything on the creek bridge that might have tripped her. She also

said that a light rain was falling and the creek bridge was slightly wet, but it did not

appear slippery. She claimed that one of the Huener sisters later told her that there was

mud on the creek bridge, but Levy did not see any mud when she started walking up the

creek bridge.

3. {¶ 7} Levy filed the underlying complaint on March 25, 2016, seeking damages

for her injuries based on R.C. Chapter 5321, Ohio’s landlord-tenant law, and common

law negligence. On November 4, 2016, the Hueners filed a motion for summary

judgment. They argued that Levy and the Hueners did not have a landlord-tenant

relationship, so the landlord-tenant laws were inapplicable. And, even if Levy were a

tenant, the Hueners did not violate R.C. 5321.04. They also argued that Levy could not

support her common law negligence claim because they did not violate any duties to

Levy and Levy could not show that the creek bridge proximately caused her fall. Or, if

they did violate a duty to Levy, the open and obvious doctrine barred her common law

negligence claim.

{¶ 8} Levy filed a response and a cross motion for summary judgment on January

17, 2017. She argued that the landlord-tenant laws applied to her and that the Hueners

violated their duties as landlords. She also claimed that the Hueners’ negligence

indisputably caused her injury. In support of her motion, Levy submitted the affidavit of

her expert, Richard Hayes, who is trained in occupational health and safety. He opined

that the creek bridge was part of a “ramp system” that provided ingress and egress to the

Hueners’ home and the creek bridge’s placement in relation to the larger ramp invited

people to use the creek bridge to access the house. He also claimed that the creek bridge

violated several building codes, was unsafe, and was the proximate cause of Levy’s

injuries. Based on this, Levy sought partial summary judgment in her favor on the issue

of the Hueners’ liability.

4. {¶ 9} On March 20, 2017, the trial court issued a judgment entry that granted the

Hueners’ motion, denied Levy’s motion, and dismissed the case. The trial court

determined that the Hueners were not liable in common law negligence because the creek

bridge was an open and obvious danger and Levy assumed any risk of crossing it. The

trial court found that the issue of Levy’s tenancy status and the applicability of R.C.

Chapter 5321 were irrelevant because she could not show that the creek bridge was the

proximate cause of her fall. The court dismissed the case because any determination of

proximate cause would be purely speculative.

{¶ 10} Levy appeals this decision, setting forth two assignments of error:

The Trial Court committed reversible error by entering summary

judgment in favor of the Defendants-Appellees.

The Trial Court committed reversible error by denying Plaintiff’s Cross-

Motion for Partial Summary Judgment where the facts of the case and Plaintiff’s

undisputed expert testimony established that Defendants-Appellees, as Plaintiff’s

landlords, failed to maintain the premises in a fit and habitable condition and

violated a specific, legislatively-enacted safety statute.

II. Summary Judgment Standard

{¶ 11} An appellate court reviews summary judgment de novo, employing the

same standard as the trial court. Grafton v. Ohio Edison Co.,

,

(1996); Lorain Natl. Bank v. Saratoga Apts.,

,

(9th Dist. 1989). The court can grant a motion for summary judgment

only when the moving party demonstrates:

5. (1) that there is no genuine issue as to any material fact; (2) that the

moving party is entitled to judgment as a matter of law; and that (3) that

reasonable minds can come to but one conclusion, and that conclusion is

adverse to the party against whom the motion for summary judgment is

made, who is entitled to have the evidence construed most strongly in his

favor. Harless v. Willis Day Warehousing Co.,

,

(1978); Civ.R. 56(C).

{¶ 12} The party seeking summary judgment must specifically delineate the basis

upon which the motion is brought and identify those portions of the record that

demonstrate the absence of a genuine issue of material fact. Dresher v. Burt,

,

(1996); Mitseff v. Wheeler,

,

(1988), syllabus. When a properly supported motion for summary judgment

is made, an adverse party may not rest on mere allegations or denials in the pleadings, but

must respond with specific facts showing that there is a genuine issue of material fact.

Civ.R. 56(E); Riley v. Montgomery,

,

(1984). The

opposing party must do so using “pleadings, depositions, answers to interrogatories,

written admissions, affidavits, transcripts of evidence, and written stipulations of fact * *

*.” Civ.R. 56(C). A “material” fact is one that would affect the outcome of the suit

under the applicable substantive law. Russell v. Interim Personnel, Inc.,

,

(6th Dist. 1999); Needham v. Provident Bank,

,

(8th Dist. 1996), citing Anderson v. Liberty

Lobby, Inc.,

,

,

(1986).

6. III. Law and Analysis

{¶ 13} Levy’s assignments of error are interrelated, so we will consider them

together. She objects to the trial court’s determinations that (1) the Hueners did not owe

her a common law duty because the creek bridge was an open and obvious danger and (2)

Levy failed to demonstrate that any potential breach by the Hueners’ of their duties as

Levy’s landlords was the proximate cause of her fall. We address each claim in turn.

A. Common Law Negligence

{¶ 14} In her brief, Levy contends that the trial court erred by finding that the

Hueners did not owe her a common law duty because any danger posed by the creek

bridge was open and obvious because, she claims, the open and obvious doctrine does not

apply when the parties have a landlord-tenant relationship. The Hueners counter that the

open and obvious doctrine applies, which relieved them of any duty they might have

owed to Levy.

{¶ 15} To prove a claim for negligence, “the plaintiff must show (1) the existence

of a duty, (2) a breach of that duty, and (3) an injury proximately resulting from the

breach.” Robinson v. Bates,

,

,

,

citing Menifee v. Ohio Welding Prods., Inc.,

,

(1984).

{¶ 16} The existence of a duty is a matter of law for the court to determine. Stoner

v. Montpelier Tavern Co., 6th Dist. Williams No. WM-16-009,

,

citing Krause v. Spartan Stores, Inc.,

,

,

(6th Dist.). Under the common law, a landowner has a duty to invitees to

7. exercise ordinary care and maintain the premises in a safe condition. Bennett v. Stanley,

,

(2001), citing Light v. Ohio Univ.,

,

(1986). This requires that the owner warn the invitee of any hidden

or latent dangers the owner knows of or reasonably should know of and take reasonable

precautions to protect the invitee from foreseeable dangers. Noe v. Keller, 6th Dist.

Lucas No. L-12-1199,

, ¶ 33.

{¶ 17} If, however, a danger is open and obvious—that is, if the danger is so

readily apparent that the invitee can reasonably be expected to discover it—the

landowner owes no duty of care to the invitee. Armstrong v. Best Buy Co.,

,

,

, syllabus, citing Sidle v. Humphrey,

,

(1968). Although a landlord cannot use the open and obvious

doctrine to defeat a statutory negligence per se claim brought under R.C. 5321.04, she

can use it to defeat a common law negligence claim. Mayhew v. Massey, 7th Dist.

Mahoning No. 16 MA 0049,

, ¶ 15, citing Robinson at ¶ 25.

{¶ 18} We agree with the trial court’s assessment that any danger posed by the

creek bridge was open and obvious and, accordingly, that the Hueners owed Levy no

common law duty to warn her about the creek bridge. Levy testified that she was well

aware of the creek bridge, knew that it was curved (as opposed to flat, like the ramp

leading to the back door), and knew that no one in the household (with the possible

exception of the dogs) walked on the creek bridge. She also testified that she knew that

the creek bridge was slightly wet from the light rain that was falling. Additionally, the

photographs of the creek bridge plainly show that it lacks a handrail or any other safety

8. features. Taken together, these facts show that any danger posed by the creek bridge was

readily apparent and Levy could reasonably be expected to discover that danger. We

find, therefore, that no genuine issues of material fact remain regarding the open and

obvious nature of any danger posed by the creek bridge. Consequently, the Hueners

owed no duty to Levy to warn her about the creek bridge, and the trial court did not err in

granting summary judgment to the Hueners on Levy’s common law negligence claim.

B. Statutory Negligence

{¶ 19} Levy next claims that the trial court erred by granting summary judgment

in the Hueners’ favor and against her on the issue of proximate cause in her statutory

negligence claims. She contends that the undisputed facts of the case show that the

Hueners’ negligence relating to the creek bridge was the proximate cause of her fall. The

Hueners argue that the trial court correctly decided the issue of proximate cause because

Levy does not know what caused her fall and a determination of proximate cause would

be based on pure speculation.

{¶ 20} Generally, proximate cause is an issue of fact for the jury to resolve. Scott

v. Kirby, 6th Dist. Lucas No. L-05-1287,

. Proximate cause may be

determined as an issue of law, however, “where reasonable minds could not differ with

respect to the matter because the circumstances clearly indicate an obvious cause and

effect relationship * * *.” (Emphasis in original.) Ornella v. Robertson,

,

(1968); Fowler v. Williams Cty. Commrs.,

,

(6th Dist. 1996). Here, we do not see an “obvious” cause and

9. effect relationship that entitles either side to summary judgment on the issue of proximate

cause.

{¶ 21} Levy argues that the Hueners proximately caused her injuries by failing to

comply with Toledo Municipal Code 1745.12(d).2 The code section states, in pertinent

part, that “[e]xterior walks and steps shall be provided for all weather access to the

dwelling or dwelling unit and constructed so as to provide safety, and reasonable

durability.”

It defines a “defective access walk” as one that has “a transverse slope in

excess of five-eighths inch per horizontal foot.” Toledo Municipal Code 1745.12(d)(4).

Levy contends that the Hueners’ failure to equip the creek bridge with handrails, traction

tape, or other safety devices shows that the creek bridge was not “constructed so as to

provide safety.” She also contends that the slope of the creek bridge—which her expert

measured as 5.5 inches per horizontal foot—is greater than the five-eighths of an inch per

horizontal foot permitted by the code. While we agree with the trial court that Levy

failed to present evidence to overcome summary judgment with regard to the creek

bridge’s lack of handrails or safety features, we find that there is a genuine issue of

material fact regarding whether the slope of the creek bridge was the proximate cause of

Levy’s fall.

{¶ 22} Levy relies on Scott v. Kirby, 6th Dist. Lucas No. L-05-1287, 2006-Ohio-

1991, to support her argument that a genuine issue of material fact exists regarding the

2 Although Levy’s expert refers to the creek bridge as an “access ramp” and claims that it violates “numerous” building code requirements for access ramp construction, Levy’s arguments focus only on the Hueners’ alleged violation of the standards for exterior access walks outlined in Toledo Municipal Code 1745.12. 10. safety of the creek bridge. She claims that her testimony in this case is “nearly identical

to” the plaintiff’s testimony in Scott. We disagree.

{¶ 23} In Scott, the plaintiff broke her ankle when she slipped on a porch because

a portion of the porch where she was standing crumbled or broke off.

. She

specifically testified in her deposition that the deteriorated condition of the porch caused

her to slip off of the porch and that she attempted to regain her balance by putting her

foot on the top porch step because there were no handrails.

She also submitted an

affidavit in support of her motion for summary judgment in which she averred that the

presence of a handrail would have helped prevent her fall and injuries. Id. at ¶ 13. The

trial court granted summary judgment to the landlord on the issue of proximate cause, but

we reversed because we found that the plaintiff’s testimony was sufficient to raise a

genuine issue of material fact regarding whether the lack of handrails was a proximate

cause of her injury. Id. at ¶ 33.

{¶ 24} In contrast, Levy testified that she did not know what caused her fall. She

also testified that the surface of the creek bridge appeared normal, i.e., she did not see any

objects or mud on the creek bridge and the creek bridge did not look slippery. Regarding

a handrail, Levy testified only that she “reached out to grab something, but there’s no

railing there” and “I knew I was in trouble because there was nothing to hold onto.”

Levy did not testify that the physical condition of the creek bridge’s surface caused her to

slip or that the presence of a handrail would have done anything to prevent her fall.

Testimony that Levy attempted to “grab something” and “was in trouble because there

was nothing to hold onto” when she slipped, without testimony that grabbing or holding

11. onto something might have changed the outcome of her slipping, is insufficient to raise

an issue of fact regarding proximate cause. See Tillman v. Montpelier Church of Christ,

6th Dist. Williams No. WM-11-013,

(reviewing cases where genuine

issues of material fact existed regarding proximate cause because the plaintiffs testified

that a handrail would have prevented or lessened an injury). Thus, we conclude that

Levy did not present sufficient evidence that the creek bridge was unsafe to overcome the

Hueners’ motion for summary judgment.

{¶ 25} Despite that, we find that the trial court improperly granted summary

judgment on the issue of proximate cause because Levy’s uncontroverted expert opinion

raises issues regarding whether the Hueners’ alleged violation of the Toledo Municipal

Code was the proximate cause of Levy’s fall. In his affidavit, Hayes, Levy’s expert,

claims that the creek bridge is part of a walkway that provides ingress and egress to the

home and that it has a slope of 5.5 inches per horizontal foot, which exceeds the five-

eighth of an inch per horizontal foot slope permitted by Toledo Municipal Code

1745.12(d). Levy’s testimony that she began to slip as she reached the highest point of

the creek bridge indicates that a high slope could have been the reason that her feet

slipped while she was crossing the creek bridge. This is sufficient to show that the slope

of the creek bridge might have been the proximate cause of Levy’s fall. Because

reasonable minds can differ on this point, summary judgment in favor of either party was

inappropriate.

{¶ 26} In sum, because the trial court properly granted summary judgment on

Levy’s common law negligence claim, but improperly granted summary judgment to the

12. Hueners on the statutory negligence claims, we find that Levy’s first assignment of error

is well-taken, in part. Because a genuine issue of material fact exists regarding proximate

cause, we find that Levy’s second assignment of error is not well-taken.

IV. Conclusion

{¶ 27} The March 20, 2017 judgment of the Lucas County Court of Common

Pleas is affirmed as to its granting the Hueners’ summary judgment on Levy’s common

law negligence claim and denying Levy’s motion for summary judgment. The trial

court’s judgment is reversed and remanded for further proceedings consistent with this

opinion on Levy’s statutory negligence claims. The parties are ordered to divide the

costs of this appeal equally pursuant to App.R. 24.

Judgment affirmed, in part and reversed, in part.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Arlene Singer, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ James D. Jensen, J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6. 13.